T.

U ACT;IESO ACT;Contract labour Regulation and Abolition Act

V.Nagaraj Professor of Law National Law School of India university Bangalore

Brief history
Black death in Britain 1348 Shortage of labour Increase in wages Cost of production goes up Regulations restricting negotiations on wages & service conditions Employments were covered stage by stage All employments were covered by 1640 Justices of peace was responsible for fixing &revising wages as well as service conditions

 Inefficiency of the justices for peace Evolution of Laissez-faire state Legislations prohibiting wage negotiations and service conditions Unions were branded as illegal combinationstheir actions were conspiracies Illegal negotiations Repressions by the state Act of 1800 made all combinations ilegal

 1824 benthamite reformers recommended removal all restrictions on combinations Industrialization also needed relaxation of restrictions State positively responded to this Combination laws repeal Act,1824 Removed the anti combinations laws However the Act did not permit violence,threats or intimidation by the unions

 The 1825 Act penalized threats .violence Etc The courts were developing the concept of common law conspiracy In walsby-V-Anley 1861, held it was unlawful for persons to combine to induce others to leave employment even by peaceful means Such peaceful persuasions were labeled as obstruction or molestation and punished Practical effect workers could go on strike but threatening to go on strike was illegal; peaceful picketing was illegal

 Harnyby-v- Close1867; trade union registered under the friendly societies Act 1855-there was embezzlement of funds- prosecution initiated against the treasurer- the prosecution failed- as the union was formed was illegal according common law Trade union Act 1871- also known as charter of trade unions- it legalised trade unions, provided for registration of trade unions; provided for immunity from criminal conspiracy

 The conservative judiciary developed the concept of civil conspiracy and applied to TU Quinn- V- Leathem 1901 AC 495, held that the officers of a trade union were liable in damages for combining to injure their employer by threatening to go on strike The prosecution was removed by law, common law developed the liability for damages Taffvale railway-V-Amalgamated society of Railway servants 1901 Ac 462, the TU funds were made liable for the tortious acts of its servants or agents

 Trade disputes Act 1906 conferred immunity from criminal conspiracy as well as immunity from civil conspiracy damages Amalgamated Society of Railway Servants V- Osborne 1910 AC 87- The House of Lords applied thelaw of corporations and the doctrine of ultravires. Raising of funds for political purposes & spending the same for political purposes was held to be illegal Trade union Act of 1913 reversed the same. Open shop and closed shop

Brief Indian T U history

Compared to Britain it is very short Indian industrialization started in the middle of the 19th century Industrial workers were unskilled and migrated from villages The common law prevailed In addition legislations were in favor of the employers, like Workmen breach of contract Act 1859-

 Plantation Act 1863 IPC Chapter X1X regarding criminal breach of contract of service Near conditions of slavery prevailed Efforts of non governmental organizations to improve the conditions Mixing of labour movement and Independence movement-political strike against lokamanya Tilaks imprisonment for 6 years

 Success of Russian revolution ILO and the need to identify the Indian workers representative Strike in Bucking ham & Carnatic mills company headed by B.P Wadia and the consequences

Trade union Act 1926

This Act provides for
registration of Trade Unions immunities for the registered Trade Unions from
criminal conspiracy civil liability for agreeing to go on strike and breaking the contract of employment by going on strike

Buckingham and Carnatic Mills at Madras

What is a Trade Union ?

Trade Union means
any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen or between employers and employees or for imposing restrictive conditions on the conduct of any trade or business and includes any federation of two or more Trade Unions

 Trade dispute means any dispute between employers and workmen or between employers and employers or between workmen and workmen which is connected with employment or non ployment or the terms of employment or the conditions of labour of any person Workmen means all persons employed in trade or Industry What is Industry?

What is the meaning of the term Industry ?

Central Machine Tool Institute v. The Deputy Registrar of Trade Unions (1978) Lab.I.C. 1732,
the meaning of the term Industry used in the Trade Union Act is as wide as the meaning of the term Industry used in the Industrial Disputes Act. These two legislations are in `pari materia Therefore it is permissible to read the definition of Industry in the Industrial Disputes Act into the Trade Union Act, 1926. Hence the meaning of the word Industry in both the legislations is same

BWSSB v. Rajappa case (1978)2 SCC 213

if an organization is carrying on systematic activity, with the cooperation of employer and employees for the purpose of producing goods or rendering services or both, then that organization is a industry

Who are workmen ?

Section 2(g), second part defines workmen
as meaning all persons employed in Trade or Industry whether or not in the employment of the employer with whom the trade dispute has arisen The definition of workmen is very wider. The only limitation is that they must be employed in trade or industry

 Who can form TU ? All persons employed in trade or industry can form trade union In fact right form TU or associations is a FR under the constitution All employees can form unions going by the Constitution Registering a TU under the TU Act requires that persons employed in trade or Industry can form TU & Get them registered

 Before registering a TU forming a TU is required Employees having common ideology & common objectives can come together and form trade union. Such TU may be temporary or permanent Registration is necessary and important if the facilities offered by the TU Act are required to be enjoyed The most important aspect is immunities

Mode of registration
Any 7 or more members by signing the application can apply for registration After submitting the application even if not more than 50% of the subscribers withdraw their subscription still the application is valid The amendment made in 2001 requires that in an industrial establishment from where the application for registration is made that union must have a membership of 10% of the total number workers or 100 members whichever is less

 Application for registration must be made to the registrar of TU It must be accompanied by a copy of the rules of the TU and a statement of the fallowing particulars The names, occupations and addressees of the members making the application The name of the TU and address of its head office

 The titles of the office bearers, names, ages, addresses and occupations of the officebearers If that TU has been in existence for ore than 1 year before the making of the application then the application must be accompanied by a general statement of assets and liabilities

Provisions to be contained in the rules of the TU

Name of the TU Objects for which the TU is formed The purpose for which the general funds of the TU will be spent-see SECTION15 Maintenance of a list of members of the TU and facilities for inspection of the same by the office bearers and the members of the TU Admission of ordinary members-who shall be members employed in the Industry Admission of honorary members to form the executive of the TU

Payment of subscription subject to statutory minimum The conditions subject to which the members are entitled to any benefits provided in the rules When the members may forfeit their benefits Imposition of any fines on the members Procedure for amending the rules or rescinding the rules Appointment or removal of the office bearers Safe custody of the trade union funds Annual audit and adequate facilities for the inspection of accounts books by the office bearers and members The manner in which the TU may be dissolved

Disqualifications of office bearers of TU

The disqualification is both for initial appointment well as continuation Who has not attained the age of 18 years Who has been convicted by a court in India of any offence involving moral turpitude and sentenced to imprisonment-this disqualification ceases after 5 years of his release

 Powers of the registrar of TU-Sections 7,8,9&10 Sec 11 appeal All communications and notices to a registered TU may be addressed to its registered office Notice of change of registered office shall be given with in 14 days of such change to the registrar of TU Every registered Tu shall be a body corporate by the name under which it is registered

 Section 15 objects on which the general funds of the T U may be spent Section 16- constitution of separate funds for political purposes Contribution to political funds is not a condition precedent to get membership of a TU No compulsion to contribute to political funds No discrimination between those who are contributing to political funds and those who are not except the control of the political funds

Rights of Minors in TU
Sections 20&21 Any person who has attained the age of 15 years may be a member of a Registered TU This is subject to the rules of the TU The rules may not permit membership There is no right to membership Those who have not attained the age 18 years cannot be become office bearers Minors are entitled to inspect the accounts books of a TU also the List of members These shall be kept open for inspection as per the rules of the TU

 Can minors alone form a TU and apply for registration? While sec 22 prescribes the proportion of outsiders as office-bearers- the proviso to the said section reads that the appropriate Govt may by special or general order declare that the provisions of this section shall not apply to any TU or class of TU in that order The implications of this proviso!

Immunity from criminal liability

Section 17
No office bearer or member of a registered Trade Union shall be liable to punishment under sub-section (2) of Section 120B of the Indian Penal Code, in respect of any agreement made between the members for the purpose of furthering any object of the Trade Union as is specified in Section 15 of the Trade Union Act unless the agreement is an agreement to commit an offence

 The very act of the workers going on strike is a breach of contract of employment. Breach of contract of employment gives rise to civil action for damages
. According to Section 43 of the Indian Penal Code anything which furnishes a ground for civil action is illegal.

So going on strike which gives rise to a civil action for damages is illegal.
Section 120A of the Indian Penal Code
if two or more persons agree to do or cause to be done an illegal act, it is criminal conspiracy for which the punishment

Hence, in the absence of immunity from criminal liability workers agreeing to go on strike would amount to criminal conspiracy and it would also give rise to civil action for damages, because of breach of contract.

 Jay Engineering works-V-State of WB-the petitioner company retrenched some of its workmen. The retrenched workmen along with other workmen blocked the companies premises completely obstructing the passage of personnel and goods. In this case the court has explained the immunity from crimes and criminal conspiracy

 Rohtas industries ltd-v-Rohtas Industries Industries Staff union AIR 1976 SC 425 Workers went on illegal strike Whether they are entitled to immunity from criminal conspiracy under the TU Act

Immunity from civil liability

Section 18 immunity to a registered Trade Union
against civil liability in respect of acts done in furtherance of a trade dispute. :
18(1) - No suit or other legal proceedings shall be maintainable in any civil court against any registered Trade Union or any office bearer or member thereof in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the trade union is a party on the ground only that such act induces some other person to break a contract of employment or that it is an interference with the trade, business or employment of some other person to dispose of his capital or his labour as he wills.

18(2) - A Registered Trade Union shall not be liable in any suit or other legal proceedings in any Civil Court in respect of any tortious act done in contemplation or furtherance of a trade dispute by an agent of the Trade Union, if it is proved that such person acted without the knowledge of or contrary to the express instructions given by the executive of the Trade Union.

 Federation of western India Cine employeesv- Filmalaya pvt ltd (1981)2 LLj393 BOM-the court has explained the immunity from civil liability Chandrana Bros V-K. Venkata Rao 1976(1) Kar.L.J 245 Rohtas Industries ltd-v- Rohtas Industries staff Union AIR 1976 S.C 425

immunities and picketing

Damodar Ganesh v. State, AIR 1961 Bom 459,
the marching to and fro before the premises of an establishment involved in a dispute, generally accompanied by the carrying and display of a sing, placards or banner bearing statements in connection with the dispute. Picketing may be accompanied by a polite request asking persons in the employment of the establishment not to assist in the running of that establishment o customers not to patronize that establishment Such acts are protected under Section 18 of the Trade Union Act as long as they are lawful and peaceful

outsiders as office bearers

Section 22
In organised sector, up to 1/3 of the total number of office bearers can be outsiders. In an unorganised sector, upto 50% of the total number of office bearers can be outsiders. , but ultimately, it is for the Trade Union to have outsiders as office bearers or not. The rules of the Trade Union will have to provide for it expressly. The outsiders will have to be given honorary membership first and then they can be elected as office bearers.

Qualifications of office bearers

To be a member of the executive or any office bearer of a registered Trade Union,
one must have completed the age of 18 years. He should not have been convicted by a court in India of any offence involving moral turpitude and sentenced to imprisonment This disability will cease if a period of five years has elapsed since his release from prison

Multiplicity and Recognition

There is no law requiring compulsory recognition of Trade Unions. there is no statutory law requiring recognition of Trade Unions, generally there will be settlements reached between the employer and employees for recognition of Trade Unions. Schedule V of the Industrial Disputes Act relating to unfair labour practices only says that it is unfair labour practice to refuse to bargain collectively in good faith with the recognised Trade Unions . Similarly, it is an unfair labour practice for a recognised Trade Union to refuse to bargain collectively in good faith with the employer. An unfair labour practice is an offence under the Industrial Disputes Act, punishable with imprisonment for a period which may extend to six months or with fine which may extend to one thousand rupees or with both.

identifying the majority union

1. Verification Method 2. Check-off Method 3. Secret Ballot Method

Rights of Recognised Unions

To raise industrial disputes and enter into collective agreements with employers; To collect membership fee / subscription payable by members to the Union on the premises of the Industrial establishment; To put up notice boards on the premises of the industrial establishment; For the purpose of preventing or resolving an industrial dispute, hold discussions with the employees who are members of that Union at a place within the premises of the establishment;

Rights of Recognised Unions [contd.]

To discuss with the employer or any person appointed by him the grievance of its members; To nominate its representatives on the grievance committee; To nominate its representatives on the Joint Management Councils; To nominate its representatives on non-statutory bipartite committees like Production Committee, Welfare Committee, Canteen Committee, etc.

Challenges posed to TU movement

Multiplicity of TUs Funds limitations Artificial restrictions on membership Sub- contracting VRS Schemes Productivity linked wages Collectivism to individualism Status of Collective bargaining settlements and the consequences Welfare legislations-un organized workers Act, construction workers Act, W C ACT, ETC